A litigation chill in the woods of northern Quebec

Nowhere in Greenpeace’s scathing report on Resolute Forest Products’ logging practices does the activist group claim the company is cutting down lumber in the valleys of the Broadback Mountains in north-central Quebec, a region protected by the local Cree government.

Doesn’t matter, says Resolute’s statement of claim filed in a Thunder Bay court on May 23. The intentional effect on people who read the report, called Resolute’s False Promises: The [Un]sustainbility Report, is to confuse them into thinking the loggers are breaching aboriginal rights.

“In their natural and ordinary meaning, or in the alternative, by way of legal innuendo, the words, phrases, allegations of fact and images about which Resolute complains were meant and understood to mean that Resolute is harvesting in the Broadback,” says the claim.

The image of a furtive woodland caribou scampering across a gravel highway in the Broadback Mountains, as well as a vague statement underneath a pan-Canadian map of threatened caribou habitat that hints Resolute could be operating in the “endangered” region, are just two of the misleading tricks Greenpeace uses to smear the company, according to the claim.

Resolute, which markets itself as a sustainable forest company, says the report’s authors defamed its reputation and caused it injury by publishing the document, passing it around at a shareholder’s meeting, and sending it to the firm’s downstream customers.

The damages, which include interfering in Resolute’s “economic relations,” total $5 million, plus another $2 million in “punitive, exemplary and aggravated damages.”

Quebec, where Resolute’s headquarters and the caribou habitat are located, has laws to protect against a legal phenomenon known as Strategic Lawsuit Against Public Participation, or SLAPP, cases, where well-funded plaintiffs sue civil society groups or journalists for criticizing their work.

The fact that Resolute didn’t file its defamation suit in that province – and the excessive price tag for damages that will likely burden the activist group’s work; it raised $9.5 million in donations in 2011 – is proof Resolute is engaging in a SLAPP case intended to silence a critic, says Greenpeace.

“The core of the debate that is beginning to happen now and, if we end up in court will be the central issue, is whether Greenpeace has the right to bring up issues of public interest that are based on fact and to advocate on those issues,” said Richard Brooks, a Greenpeace forest campaign coordinator and one of the two authors named as a defendant in the case, in an email.

But Greenpeace has made several tweaks to materials named in the statement of claim since the suit was launched, including the addition of a sentence on a website entitled Resolute: Forest Destroyer that expressly states Resolute hasn’t breached the moratorium in the Broadback Mountains.

This isn’t an admission of culpability because no information was erased, said Brooks. But it isn’t the first time Greenpeace has had to correct the record on Resolute either.

Three years ago, both parties were founding members of the Boreal Forest Agreement, an ambitious plan to have logging companies and environmentalists manage Canada’s forests together.

Greenpeace pulled out of the agreement in December, alleging Resolute wasn’t listening to scientists’ advice on caribou habitat and sustainable forest management.

In the months since, it has campaigned heavily against the company. In March, it admitted to wrongfully stating Resolute was secretly logging and cutting trees in an area where harvesting was suspended.

Resolute includes this history in its statement of claim as evidence of Greenpeace’s malicious intent to hurt the company. The activist group maintains all its work is done in the name of protecting the public interest in forests and wildlife.

While Greenpeace’s demands aren’t always clear in its materials, the activist group appears to be demanding that Resolute stop logging on or near caribou habitat beyond what aboriginal governments want protected, in regions like the Broadback Mountains and the Montagnes-Blanches.

They point to research done by Quebec government scientists that indicates the dwindling number of herds and the capacity to keep their numbers up by buffering their contact with loggers.

In recent months, the seven other environmental signatories to the Boreal Forest Agreement have suspended work with Resolute, arguing the company is not meeting its commitments to protect caribou habitat.

Resolute, which made sales in the vicinity of $4.5 billion last year, is adamant in its suit that Greenpeace has a vendetta against the company.

The statement of claim also says Greenpeace defamed the company when discussing the firm’s messy sell-off of its Mersey mill in Nova Scotia, the environmental integrity of its sustainably-marketed products and the firms reporting of recycled content.

Greenpeace ignored key facts in its presentation of Resolute’s environmental record, including the publication of an upcoming sustainability report and the existence of recycled paper mills owned by Resolute, says the claim.

Yet many of Resolute’s counter-claims used as evidence of Greenpeace’s malice are either highly technical or interpretative.

For example, Greenpeace says Resolute’s “Align” sustainable product line isn’t truly green because it doesn’t include recycled material. That’s “false and misleading” because recycled products can have a larger imprint on the environment than virgin fiber, says the claim.

For all the ink spilled over mills in Nova Scotia and recycled content, Resolute never goes after Greenpeace’s claims that the company isn’t respecting aboriginal rights, even if that element is central to the debate over the Broadback Mountains.

That may be because two weeks before Resolute filed their suit against Greenpeace, the Grand Council of the Crees filed their own complaint against Resolute, via the group that certifies Canadian logging practices as sustainable, the Forest Stewardship Council(FSC).

Resolute approved logging plans without the agreement of the Crees, who have a right to the land spelled out in an agreement with the Quebec government.

The FSC shouldn’t have certified Resolute as upholding standards on the free and informed consent of aboriginal peoples and on respecting local laws because of that fact, says the Cree complaint. It is now before the Accreditation Services International, which verifies the FSC.

Greenpeace is still deciding how to proceed with the defamation case. Two weeks ago, Ontario introduced a bill to protect groups and citizens against SLAPP cases, Bill 83.

Resolute did not return a request for comment Thursday, and no one from the Grand Council of the Crees was available for an interview.

Brooks, the campaigner named in the suit, was clear that the activist groups’ integrity – as well as its ability to openly campaign – will be at the heart of the case if it proceeds to court.